At least one Supreme Court justice, Antonin Scalia, believes Congress, rather than the courts, should decide issues like abortion rights, physician-assisted suicide and the death penalty.
His view has merit and needs to be seriously considered."It is not supposed to be our judgment as to what is the socially desirable answer to all of these questions. That's supposed to be the judgment of Congress, and we do our job correctly when we apply what Congress has written as basically and honestly as possible," Scalia told a leadership meeting of the American Medical Association Monday.
The justice was acknowledging the difficulty of the Supreme Court in applying the intent of the Constitution to some current issues, which is why he advocates writing laws to address them.
"In my Constitution, if you want the death penalty, pass a statute. If you don't want a death penalty, pass a statute the other way," he said, and then applied the same reasoning to abortion and physician-assisted suicide. "Having the Constitution mean whatever five out of nine justices think it ought to mean these days is not flexibility but rigidity."
Those are bold and even revolutionary words regarding the Supreme Court's role in American government. And while worthy of serious study, there must not be an over-reaction to those comments.
The Constitution is an inspired document, and any change in a relationship regarding it must be extremely well thought out.
And it may be after serious study that Scalia's recommendation is the way to go. At least he raises an issue that must be addressed: What should Congress decide and what should the Supreme Court decide in matters that relate to the modern era.
As advances continue to be made in scientific and technological fields, the nation finds itself facing a number of moral and ethical questions.
For example, what is the best way to deal with cloning? And where do the rights of those putting material on the Internet end and the rights of those receiving that material begin?
Congress and state governments may very well be better equipped to handle those kinds of issues than the Supreme Court. It is a subject that needs to be debated.